Factors relevant to sentencing

The sentencing 'tariff'

1. When sentencing in criminal cases, the court will usually be guided by the 'tariff' for that offence, which sets the appropriate level of penalty that should normally apply in particular circumstances. However, there is no tariff in health and safety cases. Consequently, sentences are fixed on an individual basis for every case and are subject only to statutory ceilings. For detailed guidance on how to oppose attempts to introduce “tariff sentences” see the section on the Sentencing Hearing.

Guilty pleas

2. In setting a sentence, the court is obliged to take into account a guilty plea and how early in proceedings the defendant indicated the plea (see the section Imposing the sentence). In the Crown Court, a defendant may ask the judge to give an indication of likely sentence should s/he enter a guilty plea at that stage of the proceedings (see At the Crown Court – Advance sentence indications).

Seriousness: aggravating and mitigating factors

3. When imposing a sentence, courts are required to consider the seriousness of the offence1. In assessing seriousness, the court must have regard to the defendant’s culpability and any harm that the offence caused or might foreseeably have caused2. It must also have regard to the Sentencing Guidelines Council guideline on seriousness3.

4. In R v F Howe & Son (Engineers) Ltd.4 the Court of Appeal gave a non-exhaustive list of particular aggravating and mitigating factors which might be relevant when a court decides sentence in health and safety cases.

5. The aggravating factors identified in Howe were:

Death resulted from the breach;

A failure by the defendant to heed warnings. Warnings could include, for example, previous HSE advice or enforcement notices on this (or a related) matter, concerns raised by employees or others, previous incidents of a similar nature, or previous convictions for health and safety offences. Further guidance on previous convictions can be found in the section Imposing the sentence. In deciding whether other warnings remain relevant to sentence in the current case, account should be taken of matters such as the length of time that has passed since the warning was given (for example, the date of the notice or letter), the extent of the risk in question and the similarity of the subject of the warning to the circumstances of the offence. In general, the higher the risk and the more similar the circumstances, the more likely it is that warnings that pre-date the offence by some time may nevertheless be considered relevant; and

A deliberate breach with a view to profit or a risk run specifically in order to save money.

The mitigating factors were:

Prompt admission of responsibility and a timely plea of guilty;

Steps taken to remedy the deficiencies after they were drawn to the defendant’s attention; and

A good health and safety record. Indicators could include no previous convictions in health and safety matters, no improvement or prohibition notices having been served on the defendant, and evidence that the defendant has, in the past, followed HSE advice when it has been given.

6. Magistrates Courts should have regard to the Magistrates Court Sentencing Guidelines which have been updated following the increase in penalties introduced by the Health and Safety (Offences) Act 20085.

7. The Guidelines indicate that Sentencers should assess offence seriousness (see paragraph 3 above). In some cases, much more or much less harm may result than could have been reasonably anticipated. In these circumstances, the guideline states that the offender’s culpability should be the initial factor in assessing the seriousness of the offence. The following factors may be particularly relevant to all health and safety offences, but these lists are not exhaustive:

Factors which may indicate higher than usual culpability:

Offence deliberate or reckless breach of law rather than result of carelessness

Action or lack of action prompted by financial motives (profit or cost-saving), for example by neglecting to take preventative measures or avoiding payment for relevant licence

Regular or continuing breach, not isolated lapse

Failure to respond to advice, cautions or warning from regulatory authority and/or Ignoring concerns raised by employees or others

Offender has committed previous offences of a similar nature

Offender exhibited obstructive or dismissive attitude to authorities

Offender carrying out operations without an appropriate licence

Factors which may indicate greater than usual degree of harm:

Death or serious injury or ill-health resulted from or risked by offence

High degree of damage resulting from offence (but lack of actual damage does not render the offence merely technical; it is still serious if there is risk)

Considerable potential for harm to workers or public

Animal health or flora affected

Extensive clean-up operation or other remedial steps required

Other lawful activities interfered with

Factors which may indicate lower than usual culpability:

Offender played a relatively minor role or had little personal responsibility

Genuine and reasonable lack of awareness or understanding of specific regulations

Matters of offender mitigation may include

The Magistrates Sentencing Guidelines also provide guidance to the court on the level of the fine and the approach to custodial sentences.

Other relevant factors

8. In Howe, the court also identified other factors that might be relevant to sentence. In considering sentence, it is for the court to decide, on the circumstances of each case, whether these apply and, if so, whether they are aggravating or mitigating. These factors include the following:

The degree of risk and extent of the danger (for example, death or serious personal injury was a foreseeable consequence);

The gravity and extent of the breach (for example, how far short of the appropriate standard the defendant fell);

Whether it was an isolated incident or continued over a period; and

The defendant’s resources and the effect of the fine on its business (for example, the defendant has large resources and a small fine will have little or no effect on management and shareholders).

9. The list of factors identified in Howe is not exhaustive6. There may be other factors you think are relevant which should be brought to the attention of the court. The Magistrates’ Court Sentencing Guidelines (see above) set out matters relevant to sentence that include the level of cooperation the defendant has shown and its attitude towards the enforcing authority, whether serious injury or ill-health has resulted, and whether the breaches were deliberate or reckless. See the section Imposing the sentence for further guidance.

The Friskies schedule

10. In the case of R v Friskies Petcare Ltd, the Court of Appeal made strong recommendations about the presentation of health and safety prosecutions7. To assist in the sentencing process, the Court outlined the approach that both the prosecution and defence should adopt with regard to the identification of aggravating and mitigating features:

The prosecution should list in writing both the facts of the case and the aggravating features which it says exist.

That document should be served on both the court and the defendant for their consideration8.

If the defendant pleads guilty, the defence should submit a similar document in writing, outlining the mitigating features which the court is to take into account.

If the prosecution and defence can agree the aggravating and mitigating features, these should be put into writing so that there is no doubt about the basis on which the court should pass sentence.

11. The Friskies schedule, summarising the facts of the case and listing the aggravating factors, other relevant factors as identified in Howe and any mitigating factors that you accept are present, should be served on the defendant at the same time as the Summons9. An example of a Friskies schedule is given at the end of this section, together with an example of a covering letter (see ‘Model examples’).

12. If the defendant intends to plead guilty, the defence should respond with a similar document setting out the mitigating features it believes are present. The prosecution may not have sufficient evidence to agree (or dispute) one or more of the mitigating features proposed by the defence. In such a situation, you should explain the position to the defence and, whilst you will not object to those particular mitigating features, you should decline to agree them10. The defence will put its own account of those features to the court at the sentencing hearing (see below).

13. If the aggravating, mitigating and other relevant factors can be agreed with the defence, you should prepare a final document for the court. If the factors cannot be agreed, you should explain the reason(s) for this to the defence and present your view, as set out in the Friskies schedule you will already have submitted to the court and defence, to the court at the sentencing hearing. If there is a disagreement of substance regarding the Friskies schedule, such that an agreed basis of plea cannot be presented to the court, a Newton hearing may be necessary. See the sections on Basis of plea and Newton hearings for further guidance.

14. The Friskies schedule is useful at a number of stages in the legal process:

Selecting the charge - a careful consideration of the aggravating and mitigating factors will aid you in selecting appropriate charges. You should refer to the `Approvals' section.

Mode of trial hearing - the Friskies schedule assists in setting out the basis of the prosecution case. It may help the magistrates, when they are deciding the appropriate venue, to consider what the potential sentence may be. If a large sentence is anticipated, they may wish to commit to the Crown Court. If they feel that a potential sentence is within their powers, they may choose to retain jurisdiction.

Sentencing - the Friskies schedule will be used by the court in determining the appropriate sentence should HSE be successful in their prosecution. In mitigation, a defendant might attempt to provide examples of previous fines given in other HSE prosecutions. You should point out that such an approach to sentencing in health and safety cases is not appropriate: see the section The sentencing hearing for guidance and Preparing for sentencing hearings for a summary of useful cases.

Guideline sentencing cases

15. It is a part of the duty of the prosecution to draw a sentencing judge’s attention to any relevant cases that assist and give guidance to the judge in imposing an appropriate sentence11. For example, the attention of a sentencing court should always be drawn to Howe and other relevant cases. When such cases are to be cited, legible copies of the judgment should be made available at court. You should contact Legal Adviser’s Office if you require assistance. Further guidance on the prosecution’s role at the sentencing stage can be found in the section The sentencing hearing and examples of useful cases are given in Preparing for sentencing hearings.

Victim personal statements

16. Any victim personal statement (VPS) taken during the investigation should be considered and taken into account by the court prior to passing sentence 12. The VPS should be provided to the defence prior to the sentencing hearing and will be provided to the court (after conviction) in the sentencing bundle. The consequence of the offence for the victim is a relevant factor for the court, but any opinions expressed by the victim as to what the sentence should be are not relevant; courts will not take account of any such comments.

17. Evidence of the effects of an offence on the victim contained in the VPS or other statement, must be in proper form, that is a witness statement made under section 9 of the Criminal Justice Act 1967 or an expert’s report; and served in good time upon the defendant’s solicitor or the defendant, if he is not represented. Except where inferences can properly be drawn from the nature of or circumstances surrounding the offence, a sentencing court must not make assumptions unsupported by evidence about the effects of an offence on the victim.

18. In all cases it will be appropriate for a VPS to be referred to in the course of the sentencing hearing and/or in the sentencing remarks. Subject to the court’s discretion, the contents of the VPS may be summarised and in an appropriate case even read out in open court.

19. The court must pass what it judges to be the appropriate sentence having regard to the circumstances of the offence and of the offender, taking into account, so far as the court considers it appropriate, the impact on the victim. The opinions of the victim or the victim’s close relatives as to what the sentence should be are therefore not relevant, unlike the consequences of the offence on them. Victims should be advised of this. If, despite the advice, opinions as to sentence are included in the statement, the court should pay no attention to them. The VPS may also provide information relevant to a possible compensation order. Instructions on the use of victim personal statements are given in OC130/12.

Footnotes

The amount of any fine must, in the opinion of the court, reflect the seriousness of the offence – s.164(2) Criminal Justice Act (‘CJA’) 2003. Courts must also take the seriousness of the offence into account when imposing custodial and community sentences – see sections 152 and 148 CJA 2003 respectively.

In R v Cemex Cement Ltd [2007] EWCA Crim 1759, the Court of Appeal accepted that none of the aggravating features mentioned in Howe applied to the case, but held that the court was entitled to identify other factors as aggravating for the purposes of sentence.

R v Underwood [2005] 1 Cr App R 13, CA. See also Section C (‘The Basis of Plea’) of The Attorney General’s Guidelines on the Acceptance of Pleas and the Prosecutor’s Role in the Sentencing Exercise (see above): if a defendant wishes to be sentenced on the basis of assertions of fact that are outside the prosecution’s knowledge, s/he may be required by the court to give evidence on oath, and be cross-examined, on those assertions.